Source: OJ L 333, 27.12.2022, p. 80–152Current language: EN
- High common level of cybersecurity for entities
Basic legislative acts
- NIS 2 directive
Article 33 Supervisory and enforcement measures in relation to important entities
When provided with evidence, indication or information that an important entity allegedly does not comply with this Directive, in particular Articles 21 and 23 thereof, Member States shall ensure that the competent authorities take action, where necessary, through ex post supervisory measures. Member States shall ensure that those measures are effective, proportionate and dissuasive, taking into account the circumstances of each individual case.
Member States shall ensure that the competent authorities, when exercising their supervisory tasks in relation to important entities, have the power to subject those entities at least to:
on-site inspections and off-site ex post supervision conducted by trained professionals;
targeted security audits carried out by an independent body or a competent authority;
security scans based on objective, non-discriminatory, fair and transparent risk assessment criteria, where necessary with the cooperation of the entity concerned;
requests for information necessary to assess, ex post, the cybersecurity risk-management measures adopted by the entity concerned, including documented cybersecurity policies, as well as compliance with the obligation to submit information to the competent authorities pursuant to Article 27;
requests to access data, documents and information necessary to carry out their supervisory tasks;
requests for evidence of implementation of cybersecurity policies, such as the results of security audits carried out by a qualified auditor and the respective underlying evidence.
The targeted security audits referred to in the first subparagraph, point (b), shall be based on risk assessments conducted by the competent authority or the audited entity, or on other risk-related available information.
The results of any targeted security audit shall be made available to the competent authority. The costs of such targeted security audit carried out by an independent body shall be paid by the audited entity, except in duly substantiated cases when the competent authority decides otherwise.
When exercising their powers under paragraph 2, point (d), (e) or (f), the competent authorities shall state the purpose of the request and specify the information requested.
Member States shall ensure that the competent authorities, when exercising their enforcement powers in relation to important entities, have the power at least to:
issue warnings about infringements of this Directive by the entities concerned;
adopt binding instructions or an order requiring the entities concerned to remedy the deficiencies identified or the infringement of this Directive;
order the entities concerned to cease conduct that infringes this Directive and desist from repeating that conduct;
order the entities concerned to ensure that their cybersecurity risk-management measures comply with Article 21 or to fulfil the reporting obligations laid down in Article 23, in a specified manner and within a specified period;
order the entities concerned to inform the natural or legal persons with regard to which they provide services or carry out activities which are potentially affected by a significant cyber threat of the nature of the threat, as well as of any possible protective or remedial measures which can be taken by those natural or legal persons in response to that threat;
order the entities concerned to implement the recommendations provided as a result of a security audit within a reasonable deadline;
order the entities concerned to make public aspects of infringements of this Directive in a specified manner;
impose, or request the imposition by the relevant bodies, courts or tribunals, in accordance with national law, of an administrative fine pursuant to Article 34 in addition to any of the measures referred to in points (a) to (g) of this paragraph.
Article 32(6), (7) and (8) shall apply mutatis mutandis to the supervisory and enforcement measures provided for in this Article for important entities.
Member States shall ensure that their competent authorities under this Directive cooperate with the relevant competent authorities of the Member State concerned under Regulation (EU) 2022/2554. In particular, Member States shall ensure that their competent authorities under this Directive inform the Oversight Forum established pursuant to Article 32(1) of Regulation (EU) 2022/2554 when exercising their supervisory and enforcement powers aimed at ensuring compliance of an important entity that is designated as a critical ICT third-party service provider pursuant to Article 31 of Regulation (EU) 2022/2554. with this Directive.
Relevant recitals
Recital 122 Supervisory regimes for entities
In order to strengthen the supervisory powers and measures that help ensure effective compliance, this Directive should provide for a minimum list of supervisory measures and means through which the competent authorities can supervise essential and important entities. In addition, this Directive should establish a differentiation of supervisory regime between essential and important entities with a view to ensuring a fair balance of obligations on those entities and on the competent authorities. Therefore, essential entities should be subject to a comprehensive ex ante and ex post supervisory regime, while important entities should be subject to a light, ex post only, supervisory regime. Important entities should therefore not be required to systematically document compliance with cybersecurity risk-management measures, while the competent authorities should implement a reactive ex post approach to supervision and, hence, not have a general obligation to supervise those entities. The ex post supervision of important entities may be triggered by evidence, indication or information brought to the attention of the competent authorities considered by those authorities to suggest potential infringements of this Directive. For example, such evidence, indication or information could be of the type provided to the competent authorities by other authorities, entities, citizens, media or other sources or publicly available information, or could emerge from other activities conducted by the competent authorities in the fulfilment of their tasks.
Recital 123 Careful execution of supervisory activities
The execution of supervisory tasks by the competent authorities should not unnecessarily hamper the business activities of the entity concerned. Where the competent authorities execute their supervisory tasks in relation to essential entities, including the conduct of on-site inspections and off-site supervision, the investigation of infringements of this Directive and the conduct of security audits or security scans, they should minimise the impact on the business activities of the entity concerned.
Recital 124 Prioritisation of the use of supervisory measures
In the exercise of ex ante supervision, the competent authorities should be able to decide on the prioritisation of the use of supervisory measures and means at their disposal in a proportionate manner. This entails that the competent authorities can decide on such prioritisation based on supervisory methodologies which should follow a risk-based approach. More specifically, such methodologies could include criteria or benchmarks for the classification of essential entities into risk categories and corresponding supervisory measures and means recommended per risk category, such as the use, frequency or types of on-site inspections, targeted security audits or security scans, the type of information to be requested and the level of detail of that information. Such supervisory methodologies could also be accompanied by work programmes and be assessed and reviewed on a regular basis, including on aspects such as resource allocation and needs. In relation to public administration entities, the supervisory powers should be exercised in line with the national legislative and institutional frameworks.
Recital 125 Objective and professional execution of supervisory measures
The competent authorities should ensure that their supervisory tasks in relation to essential and important entities are carried out by trained professionals, who should have the necessary skills to carry out those tasks, in particular with regard to conducting on-site inspections and off-site supervision, including the identification of weaknesses in databases, hardware, firewalls, encryption and networks. Those inspections and that supervision should be conducted in an objective manner.
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- it is established for the purpose of meeting needs in the general interest and does not have an industrial or commercial character;
- it has legal personality or is entitled by law to act on behalf of another entity with legal personality;
- it is financed, for the most part, by the State, regional authorities or by other bodies governed by public law, is subject to management supervision by those authorities or bodies, or has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional authorities or by other bodies governed by public law;
- it has the power to address to natural or legal persons administrative or regulatory decisions affecting their rights in the cross-border movement of persons, goods, services or capital;